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Tellez v. Colvin

United States District Court, C.D. California

November 25, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant

For Michael Angelo Tellez, Plaintiff: Lawrence D Rohlfing, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.

For Michael J Astrue, Commissioner of Social Security, Defendant: Scott J Borrowman, LEAD ATTORNEY, Social Security Administration, U.S. Attorneys Office - U.S. Department of Justice, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.


FREDERICK F. MUMM, United States Magistrate Judge.

Plaintiff brings this action seeking to overturn the decision of the Commissioner[1] of the Social Security Administration denying his application for a period of disability, disability insurance benefits, and supplemental security income benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. Pursuant to the September 10, 2012 Case Management Order, on June 20, 2013, the parties filed a Joint Stipulation (" JS") detailing each party's arguments and authorities. The Court has reviewed the JS and the administrative record (" AR"), filed by defendant on March 18, 2013. For the reasons stated below, the decision of the Commissioner is affirmed.


On or about March 6, 2009, plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income benefits. (AR 157-62.) The applications were denied initially and upon reconsideration. (AR 99-104, 105-11.) Plaintiff requested a hearing before an administrative law judge (" ALJ"). (AR 114-16.) ALJ Michael J. Kopicki held a hearing on October 25, 2010. (AR 66-92.) Plaintiff appeared with counsel and testified at the hearing. (Id.) On March 14, 2011, the ALJ issued a decision denying benefits. (AR 32-42.) Plaintiff sought review of the decision before the Social Security Administration Appeals Council. (AR 155-56.) The Council denied the request for review on June 12, 2012. (AR 5-10.)

Plaintiff filed the complaint herein on September 4, 2012.


Plaintiff raises two issues:

1. Whether the ALJ properly considered plaintiff's mental limitations.

2. Whether the ALJ erred in relying on the vocational expert's testimony.


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


1. Plaintiff's mental limitations.

A. Background.

At the hearing, plaintiff testified that he suffered from anxiety and agoraphobia-like symptoms, which had worsened over time. He quit his prior job because of anxiety. Plaintiff testified that he starts hyperventilating when he is around more than six people. (AR 71-75.) At the ALJ's direction (AR 90-91), plaintiff underwent a consultive examination by psychologist Jeannette K. Townsend, Ph.D. (AR 494-502.) Plaintiff complained of anxiety, insomnia, and " not social [ sic ]." (AR 494.) Dr. Townsend observed that plaintiff was visibly anxious during the examination. (AR 495.) Plaintiff scored below average in psychological testing. (AR 495-97.)

Dr. Townsend diagnosed plaintiff with anxiety disorder with panic attacks and agoraphobia. (AR 498.) She assigned him a GAF score of 55.[2] (Id.) Dr. Townsend opined that plaintiff's anxiety would interfere with focused concentration and attention, and he might need more repetitions to learn basic job skills. (Id.) In addition, his fear of leaving home would impair his attendance and reliability. (AR 498, 501.)

A physician's assistant, John Medina, opined that plaintiff had marked mental limitations in concentration, persistence, and pace. (AR 371.) Medina further opined that plaintiff would miss more than four days of work per month. (Id.) A nonexamining physician opined that plaintiff was moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (AR 319.) At the hearing, the vocational expert (" VE") indicated that plaintiff would not be able to work if he missed more than four workdays per month. (AR 90-91.)

In his decision, the ALJ opined, in pertinent part, that plaintiff was restricted to simple routine work activity, with no more than occasional public contact as a function of the job. (AR 37.) The ALJ found plaintiff less than credible in his claims of debilitating anxiety and other psychological symptoms. (AR 39.) The ALJ gave " substantial weight" to Dr. Townsend's opinion, but rejected her conclusions regarding plaintiff's attendance and reliability. (Id.) The ALJ, mistakenly believing that Medina was a physician, rejected Medina's opinion as well. (Id.)

Plaintiff contends that the ALJ provided insufficient reasons for rejecting Dr. Townsend's conclusions regarding plaintiff's attendance and reliability. (JS 2-10, 16.) The Court disagrees.

B. Analysis.

In evaluating physicians' opinions, the case law and regulations distinguish among three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither treat nor examine the claimant (non-examining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. § § 404.1502, 416.902, 404.1527(d), 416.927(d). As a general rule, more weight should be given to the opinion of a treating source than to the opinions of physicians who do not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. § § 404.1527(d)(2), 416.927(d)(2). The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician. Lester v. Chater, 81 F.3d at 830; Gallant, 753 F.2d at 1454. If the opinion of a treating or examining physician is uncontroverted, the Commissioner must provide " clear and convincing" reasons, supported by substantial evidence in the record, for rejecting it. Lester, 81 F.3d at 830.

Here, Dr. Townsend's opinion regarding plaintiff's attendance and reliability were uncontroverted, in that both Medina and the nonexamining physician opined that plaintiff would face some degree of impairment therein. However, the ALJ provided clear and convincing reasons for rejecting Dr. Townsend's opinion. An opinion of disability that is " premised to a large extent upon the claimant's own accounts of his symptoms and limitations" may be disregarded where those complaints have been properly discounted." Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); Batson v. Comm'r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004). As the ALJ asserted, plaintiff treated his anxiety and agoraphobia-like symptoms only with Klonopin, which was refilled through his general practitioner. (AR 75-77; see generally AR 350-55, 371, 452-67.) Plaintiff never sought counseling, even though he had insurance through his wife's job. (AR 76.) The ALJ reasoned that the claimed severity of plaintiff's anxiety and agoraphobia-like symptoms were undermined by his failure to seek additional treatment. (AR 36, 39.) Evidence of a lack of treatment, or an unexplained failure to seek treatment, is sufficient to discount a claimant's testimony regarding the severity of an impairment.[3] Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Fair, 885 F.2d at 603.

Furthermore, inconsistencies between a plaintiff's testimony and his conduct, or within his testimony, can undermine a plaintiff's claims of subjective symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (discounting credibility where plaintiff presented " conflicting information" about her alcohol and drug use and engaged in activities inconsistent with claim of disability). As the ALJ reasoned, plaintiff's ability to leave his house, drive independently, and join a gym were inconsistent with his claims of crippling social anxiety. (AR 39; see AR 83-84, 458.) Accordingly, they undermined Dr. Townsend's findings regarding attendance. See Thomas, supra; see also 20 C.F.R. § § 404.1527(d)(4), 416.927(d)(4) (the more consistent opinion is with record as a whole, the more weight it will be given).

The ALJ also asserted that Dr. Townsend's opinion regarding attendance and reliability was " forcibly derived from history as a onetime evaluation (incidentally, which was not done in [plaintiff's] home), [and] provides no objective measure of future reliability. . . ." (AR 39.) Plaintiff objects that no doctor can predict the future. Therefore, the lack of future reliability is an impermissible ground for rejecting a physician's opinion. (JS 8.) As the Court understands it, however, the ALJ meant that (1) a claimant's capacity for regular attendance is unsuited to evaluation in a single visit; and (2) Dr. Townsend's opinion was constrained by plaintiff's unreliable account of his symptoms. ( See AR 39.) These are proper grounds for discounting a physician's opinion. See 20 C.F.R. § § 404.1527(d)(2)(i), 416.927(d)(2)(i) (" Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion"); see also discussion, supra . In any case, as the ALJ provided other record-supported reasons for rejecting Dr. Townsend's opinion, any error was harmless. See Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

Plaintiff does not explicitly contend that the ALJ erred in discounting Medina's opinion and the opinion of the nonexamining psychiatrist. ( See JS 7-8.) The Court notes that such a contention would fail. Medina is not an " acceptable medical source, " as defined in the Social Security regulations. See 20 C.F.R. § § 404.1513(a), 416.913(a) (" acceptable medical sources, " whose evidence Administration may use to establish impairment include, inter alia, licensed physicians and psychologists). Thus, the ALJ was not required to give his opinion any particular weight. See 20 C.F.R. § § 404.1527(a)(2), 416.927(a)(2) (defining " medical opinions" as, in pertinent part, statements from " acceptable medical sources"); Gomez v. Chater, 74 F.3d 967, 970-971 (9th Cir. 1996) (holding that regulations permit Commissioner to give " less weight" to opinions from " other sources"); but see Social Security Ruling (" S.S.R." ) 06-03p, 2006 WL 2329939 (S.S.A.) at *5 (where opinion of " other source" may reflect " acceptable medical source's" judgment, opinion must be granted same weight as would be given " acceptable medical source's" opinion). In any case, the ALJ provided clear and convincing reasons for rejecting Medina's opinion. As the ALJ reasoned (AR 39), it was Medina's first assessment of plaintiff and was therefore unsupported by longitudinal observation. See 20 C.F.R. § § 404.1527(d)(2)(i), 416.927(d)(2)(i). Moreover, Medina worked in a family practice, not for a mental health specialist. ( See generally AR 350-55, 371, 452-67.) An ALJ may give less weight to the opinion of a source who is not a specialist in the area in which he is opining. 20 C.F.R. § § 404.1527(c)(5), 416.927(c)(5).

Finally, the ALJ discounted the nonexamining physician's conclusions regarding attendance and reliability on the same grounds on which he relied in discounting Dr. Townsend's opinion. ( See AR 39.) As discussed above, those grounds are sufficient.

In sum, the ALJ provided sufficient reasons for rejecting the opinions at issue. Accordingly, plaintiff is not entitled to remand on this issue.

2. The vocational expert's testimony.

A. Background.

At the hearing, the VE testified that a claimant with plaintiff's vocational factors and the residual functional capacity (" RFC") to perform light work with the limitations the ALJ ultimately adopted ( see AR 37) could work as (1) a nut and bolt assembler, Dictionary of Occupational Titles (" DOT") 929.587-010, of which there were 150, 000 jobs existing nationally and 1500 jobs locally; (2) a bonder, DOT 726.685-066, with 200, 000 jobs existing nationally and 2, 000 jobs locally; and (3) a touch-up screener, DOT 726.684-110, with 150, 000 jobs existing nationally and 1, 500 locally. (AR 88-89.) The ALJ adopted the VE's testimony in his decision and concluded that plaintiff was not disabled. (AR 41.)

After the ALJ issued his decision, plaintiff submitted to the Appeals Council data from Specific Occupational Employment Unskilled Quarterly (" SOEUQ") and Job Browser Pro (" JBP"). (AR 275-318.) According to plaintiff, the data from SOEUQ demonstrates that there are (1) 443 bonder jobs existing nationally and 13 locally (AR 317); and (2) 2, 890 touch-up screener jobs existing nationally and 129 locally (AR 318).[4] According to plaintiff, the data from JBP demonstrates that there are (1) 1, 035 nut and bolt assembler jobs existing nationally and 42 locally (AR 299); (2) nine bonder jobs existing nationally and 0 locally (AR 306); and (3) 1, 508 touch-up screener jobs existing nationally and 71 locally (AR 316). Plaintiff argued that these numbers show that the occupations at issue do not exist in significant numbers in the local economy; therefore, plaintiff could not be found disabled. (AR 278-29.) The Appeals Council denied review.[5] (AR 5-10.)

Plaintiff asserts that SOEUQ and JBP are accurate, well-established sources for data on job availability. (JS 18-20.) Plaintiff argues that (1) where a VE's testimony contradicts the SOEUQ and JBP data; and (2) the VE does not disclose his or her data source, the VE's testimony should not be considered substantial evidence, as the SOEUQ and JBP are presumptively accurate and reliable. (JS 19-21.) The Court disagrees.

B. Analysis.

At step five of the sequential evaluation process, the ALJ must determine whether the claimant is able to perform other work ( i.e., other than his past relevant work) considering his RFC and other vocational factors. 20 C.F.R. § § 404.1520(g), 416.920(g). In order to support a finding that the claimant is not disabled at this step, the Administration has the burden of providing evidence that other work that plaintiff can perform " exists in the national economy." 20 C.F.R. § § 404.1512(g), 404.1560(c), 416.912(g), 416.960(c). Work exists in the national economy when it exists in significant numbers either in the claimant's region or in several other regions of the country. 20 C.F.R. § § 404.1566(a), 416.966(a).

The Social Security regulations provide that when the ALJ decides that unskilled sedentary, light, and medium jobs exist in the national economy, he or she must take administrative notice of reliable job information available from various sources, including the DOT. 20 C.F.R. § § 404.1566(d)(1), (d)(5), 416.966(d)(1), (d)(5). However, the regulations do not include SOEUQ and JBP among the examples of reliable job information sources. See 20 C.F.R. § § 404.1566(d)(1)-(5), 416.966(d)(1)-(5). Nor does plaintiff point to a Social Security Ruling or other administrative publication indicating that SOEUQ and JBP should be viewed as presumptively accurate and reliable. Although not dispositive, the SOEUQ and JBP's absence from the relevant regulations undermines plaintiff's argument that they are authoritative sources on job availability. Moreover, plaintiff presents only a layperson's interpretation of the data from those sources. ( See AR 278-318.) This failure further weakens his argument.

The ALJ may call upon a VE to testify as to the availability of relevant jobs in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999); see 20 C.F.R. § § 404.1566(e), 416.966(e) (authorizing ALJs to rely on VE testimony to determine occupational issues). The VE's testimony on this subject is a proper subject of administrative notice. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Moreover, the VE need not lay a foundation for the reliability of his or her testimony regarding the number of available jobs.[6] " A VE's recognized expertise provides the necessary foundation for his or her testimony." Id.

Therefore, in plaintiff's case, the fact that the VE did not disclose her sources on job availability did not render her testimony infirm. Thus, it was proper for the ALJ to rely on it. Bayliss, supra ; see also Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (testimony of VE constitutes substantial evidence). In turn, it was proper for the Appeals Council to deny review, even though plaintiff presented allegedly contradictory evidence. In Social Security Cases, it is the factfinder's prerogative to resolve such conflicts in the evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995); see also Richardson, supra .

Although, as plaintiff notes, several unpublished decisions recognize that SOEUQ or JBP data can constitute substantial evidence ( see JS 18-19), the Court has found no case in this circuit holding that a VE must rely on them, or that they control when they conflict with the VE's testimony. Therefore, the SOEUQ and JBP data plaintiff provided does not warrant remand. See Merryflorian v. Astrue, 2013 WL 4783069, at *5 (S.D. Cal. 2013); (holding that Appeals Council did not err in upholding ALJ's decision, notwithstanding plaintiff's post-decision submission of SOEUQ and JBP data; citing cases rejecting same or similar argument); Gardner v. Colvin, 2013 WL 781984, at *5 (C.D. Cal. 2013) (rejecting same argument regarding SOEUQ and JBP data).


For the foregoing reasons, the decision of the Commissioner is affirmed.



In accordance with the Memorandum Decision and Order filed concurrently herewith,

IT IS HEREBY ADJUDGED that the decision of the defendant, the Commissioner of Social Security Administration, is affirmed and this action is dismissed with prejudice.

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